The trials and tribulations of a judicial reformist, her efforts to make change and bring transparency into the court system, and the system's response. Attorney Clark also comments on judicial reform issues around the USA, and lawyer rights. Go to About to report judicial misconduct or leave a note for Attorney Clark.

Monthly Archives: April 2012

The word recuse or recusal, disqualify or disqualification relates to a judge being removed from presiding over a case.

The judge can self-recuse or self-disqualify, or a party to the case can request that the judge be removed.

If the party makes a motion, it’s ruled upon like any motion in the case, and under certain procedural rules, appellate review of the judge’s decision can be sought. In Minnesota, the party whose motion to disqualify is denied by the sitting judge, must be quickly brought to the attention of the Court of Appeals (instead of waiting to appeal the issues at the end of the case).

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee or a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, child, or any other member of the judge’s family residing in the judge’s household, a person with whom the judge has an intimate relationship, or any other member of the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse, a person with whom the judge has an intimate relationship, and any member of the judge’s household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2.

In essence this means that judge cannot improperly be “for” or “against” a party appearing before him or her in a case. The case law also tells us that judges cannot be improperly “for” or “against” a particular attorney for a party.

And, a judge cannot be improperly “for” or “against” a particularly type of party, such as people from a certain place or with a particular belief system, religion, etc.

As part of the multi-pronged approached I’ve talked about in the past, for the public to be sure the government is responding appropriately to judicial misconduct, it’s important to see progress in cases litigated on the merits. That is, within the cases themselves.

A couple of days ago, I posted about the resignation of a Georgia Chief Judge William F. Lee Jr. Savannahnow.com posted that Judge “Lee was under investigation by the state’s Judicial Qualifications Commission over allegations of judicial misconduct in an undisclosed case, according to filings with the Georgia Supreme Court on Thursday [April 25, 2012].” Governor Deal accepted Judge Lee’s resignation the same day. (Story here).

Although Lee is indicating the resignation was all voluntary (story here), it appears to have been ‘inspired’ by the ethics probe, since a consent order was filed indicating the matter was resolved by Lee’s resignation.

As I’ve discussed in other posts, the ethics investigation of Judge Lee is a completely separate process from appealing the merits of a case. In the ethics/discipinary process, the government can actually perform an investigation, can review documents, interview witnesses, etc The judge’s due process rights must be considered, the judge can defend, and that sometimes results in a trial. Or, judges can decide to ‘settle’ their cases and accept discipline (or in the case of Judge Lee, agree to resign).

Objecting to judicial misconduct within the case is a wholly different process. Within the case, the parties can also challenge judicial conduct through several mechanisms, one of which is to ask the judge to recuse. If this request or motion is granted, this means the judge ceases to be the presiding judge in the case, and a different judge gets assigned. This is also referred to at times as “disqualification” of the judge.

I’ll blog in the future about recusals, the process, and the problems. Suffice it to say for this post that in my opinion, judges who have been the subjects of recusal motions have too often been hostile to the party’s request (rather than judicial and intellectual), and reviewing courts have too often supported the judge – over fairness to the parties. Let’s see if this changes as the judicial reform movement sweeps the nation.

In Georgia, the City of Savannah challenged Judge Lee, and sought to have him disqualified from a civil case, based on allegations that he had improper outside conversations with a senior partner for the law firm representing a plaintiff in the suit.” (Story here). Judge Lee did not recuse himself.

This is a real practical problem, because if a judge really is doing wrong, that judge often wants to stay in “control” of the case – to protect himself.

The Georgia Supreme Court has accepted review of the disqualification issue. The Supreme Court doesn’t “investigate” in this situation. It is limited to the evidence already filed in the case (known as the “record”). The Supreme Court will apply the law to the facts in the record.

Supreme Courts are also ‘policy’ courts. The Georgia Supreme Court may have taken the case to grapple with the issue of judicial misconduct, and how it should be handled within a case.

This will be an interesting case to watch. Although I don’t know about the evidence in this particular case, the mere fact that the Georgia Supreme Court accepted review of the issue is important. This prong must be advanced to get at the nub of the problem of judicial misconduct in the case: parties need to know that fairness in their case is taken seriously by the court system. The all-too-often knee-jerk reaction by the courts to protect the reputation of judges needs to be examined.

Parties who choose to litigate the issue of the judge’s conduct within their case should know that they can also seek discipline of a judge in that state’s separate ethics system. (This often this comes later.) That type of complaint can also be important to deter judicial misconduct by that judge and other judges. But the only way to affect the case itself, is to appeal the legal issue triggered by the judge’s conduct within the case.

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A George Chief Judge has announced he will step down amid an ethics probe.

According to ACP, the Chief Judge “was being investigated for allegedly engaging in improper communications with lawyers and entering orders in cases without notifying all parties and attorneys involved. He was also being investigated for assigning himself pending cases when he was otherwise disqualified….”

When he retires May 1, William F. Lee Jr. will become the seventh chief Superior Court judge in Georgia to step down amid ethics investigations since 2010. The others:

Lynn Akeley-Alderman of the Enotah Judicial Circuit resigned in March while being investigated for allegedly engaging in an improper meeting with a Forsyth County judge to promote the interests of a methamphetamine trafficker.

David Barrett of the Enotah Judicial Circuit retired in March after he brandished a handgun in court to make a rhetorical point to an alleged sexual assault victim as she testified on the witness stand.

Amanda Williams of the Brunswick Judicial Circuit retired in January after being charged with behaving in a tyrannical manner and locking up some drug court defendants indefinitely.

Kenneth Nix of Cobb County resigned in October 2010 after being accused by a county prosecutor and investigator of inappropriately touching their bottoms.

Paschal English of the Griffin Judicial Circuit resigned in April 2010 amid disclosures he was having an affair with a public defender assigned to his court. A deputy found them having sex in a parked car.

Ernest “Bucky” Woods of the Mountain Judicial Circuit resigned in January 2010 after being accused of improperly contacting a female criminal defendant through Facebook.

I received an email last night from a reader of this blog. She articulated some frustrations with trying to make change in Minnesota regarding judicial misconduct she had experienced as a litigant. My response back to her was that this is a multi-pronged problem. The solution therefore, needs to be multi-facited as well.

As with all forms of misconduct, judges cannot do it alone. And they cannot get away with it – alone. It is not uncommon for judges participating in judicial misconduct to be facilitated by other judges. And certain types of judicial misconduct (like ex parte communications with lawyers) could not occur without the knowing assistance of lawyers.

The Minnesota Lawyers Board plays a role in protecting judicial misconduct.

For a number of years now, I have been asking the Minnesota Lawyers Board, through its Prosecutorial arm, the Office of Lawyers Professional Responsibility (OLPR, run currently by Director Marty Cole) to prosecute attorneys who facilitate judicial misconduct. One of our lawyer ethics canons specifically prohibits lawyers from “knowingly assist[ing] a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law” (Minnesota Rule of Professional Conduct 8.4(f)).

I filed a complaint against a lawyer implicating this Rule in 2006. The OLPR wouldn’t even investigate it.

I also appealed the refusal to investiate to the Lawyers Board itself: same result.

In 2011, a client of mine made a complaint to the OLPR about a lawyer who is a judge’s clerk, for violating 8.4(f). Judges could not commit much of the misconduct they commit, without the assistance of court clerks, some of whom are lawyers. That complaint was, also, rejected without any investigation by the OLPR.

Now, why do you think that is?

I cannot locate any indication that the OLPR has ever investigated a lawyer for knowingly assisting judicial misconduct. And I have queried the Director’s Office about this. And the response (you’re going to love this one)? That the OLPR will not even consider investigating a lawyer for misconduct under 8.4(f) until it has been proven that the judge engaged in misconduct.

Now, this is a problem for a couple of reasons. This means that to solve the problem of lawyer misconduct contributing to judicial misconduct, we have to solve the problem of judicial misconduct. Minnesotans cannot get the Judicial Standards Board to be responsive, to investigate wayward judges or to charge them. That’s the problem. Both of these agencies claim that they exist to protect the public. This Catch 22 created by the Lawyers Board will continue the cycle of Minnesota litigants being harmed, and no one doing anything about it. It’s sad, and it’s not acceptable.

But this analysis by the OLPR Director is also a problem because most of what occurs at the Judicial Standards Board is confidential. What if a lawyer sends ex parte text messages to the judge trying his case? And what if the judge is investigated, and cuts a private deal with the JSB? We, the public, will never know about it, and someone complaining about the lawyer will never be able to prove it. That would stop the lawyer investigation in its tracks (according to what I’m being told by the Director) and for a completely silly reason: because the complainant could not prove that the judge had been disciplined.

And, it’s clear the OLPR isn’t about to try to obtain confidential information from the JSB, even though both agencies are arms of the Supreme Court.

But further, the Director has already admitted to me that there is no legal reason why a lawyer cannot be investigated and prosecuted for an 8.4(f) violation, unless and until the judge has already been charged and found to have engaged in misconduct.

So I asked the Director again, why won’t you do it? The response? “Discretion” of the Director. This shows this is a cultural problem. And that’s something the public has a right to try to change.

The reason, in my opinion, that the Director won’t investigate these lawyers who assist judicial misconduct (and why the Lawyers Board won’t make him) is that the Lawyers Board is in the business of excusing judicial misconduct, and they have been for years. So, they reward lawyers who help them go after the source of the problem in their eyes: lawyers who complain about judicial misconduct. (I’ll say more about that in upcoming posts.) And the OLPR never goes after the lawyers who help judges commit judicial misconduct, and help them get away with it.

So frustrated Minnesotan, this is part of your answer. This is why I say it is a multi-pronged problem.

I’m here to say, Minnesota, we are behind the curve. Note how the Florida Bar has found a criminal prosecutor guilty of misconduct for communicating ex parte with a judge during a trial.

While trying a death-penalty case before Judge Ana Gardiner in 2007, Scheinberg exchanged 949 phone calls and 471 text messages with the judge. For failing to disclose the communications, a referee for the Florida Bar has found Scheinberg guilty of professional misconduct and recommended the suspension.

“The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice,” Florida Bar Referee Sheree Davis Cunningham wrote in her 10-page report. “His disregard, inadvertent or otherwise, for the sanctity of the legal process must be addressed.”

Obviously, the judge accepting ex parte communications and not disclosing them is judical misconduct. We can’t tell from the story whether someone went after the judge. But the Florida Bar has it right. Regardless of whether the judge is found guilty (or even investigated), the prosecutor should have disclosed the communications to opposing counsel. And failure to do so is misconduct (and, under 8.4(f), knowingly assisting judicial misconduct).

I’m asking the Minnesota OLPR Director Marty Cole to explain to Minnesotans whether he is still refusing to investigate lawyers for this type of conduct.

An “ex parte” communication in the law biz, means a communication to the judge in the case, in which no other “side” in the case is involved. The term has different meanings in different contexts.

Some statutes specifically permit one part to go to a judge and request “ex parte” that a certain type of order be issued. For example, the Minnesota statute regarding harassment restraining orders specifically permits that a judge consider one “ex parte” (as long as there is a hearing shortly thereafter with both sides involved).

The improper type of “ex parte” communication means that one side is gaining access to the judge without the other side knowing about it and there is no statute or rule that permits it. A typical type of “ex parte” communication that a party might complain about? One lawyer in a case sends an email to a judge, and does not copy the other side. That means the judge has information from only one side, and does not hear the rebuttal by the other side on the same issue. Of course, “ex parte” communications can also occur in person (in hallways, judge’s offices, cafeterias), by phone or text, and even by relaying a message through another judge.

Lawyers are prohibited from engaging in these improper “ex parte” communications, and judges are as well, see Minnesota Code of Judicial Conduct

RULE 2.9 Ex Parte Communications

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter [although some exceptions are listed].